DOC, BD, LOSS, DEFENCES

Question 1

What are the 4 elements of establishing negligence?

Answer 1

1. Did D owe C a duty of care
2. Did D breach that duty of care
3. Did D’s breach cause C loss
4. Are there an applicable defences

Question 2

What was the initial test for owing a duty of care?

Answer 2

donoghue v Stevenson: the neighbour principle: take reasonable care to avoid harming others whom it is reasonably foreseeable would be directly affected by your actions

Question 3

What was the Anns test which was rejected by Caparo?

Answer 3

a duty of care will arise wherever it is reasonably foreseeable that others may be harmed by your carelessness, unless there are policy reasons for denying or restricting such a duty

Question 4

What happened in the case of Carparo v Dickman?

Answer 4

the claimants bought shares plc in reliance on an audit into the company’s finances carried out by the defendant. In fact the accounts published by the defendant were inaccurate and the claimants sued in negligence.

Question 5

the claimants bought shares plc in reliance on an audit into the company’s finances carried out by the defendant. In fact the accounts published by the defendant were inaccurate and the claimants sued in negligence.

Answer 5

What happened in the case of Carparo v Dickman?

Question 6

What is the tripartite test of the Caparo test? and the incremental approach

Answer 6

1) was it reasonably foreseeable that a failure to take care could cause damage to the claimant?
2) was there a relationship of proximity between the claimant and the defendant?
3) is it fair, just and reasonable that the law should recognise a duty on the defendant to take reasonable care not to cause that damage to the claimant

or the incremental basis
-that a court should recognise a duty of care where it can find some previous decision where a duty of care has been recognised in an analogous situation. In some circumstances it may be justified to extend the duty of care incrementally

Question 7

What are the 2 points under the first step of the tripartite test
-reaosnable foreseeability ?

Answer 7

1) claimant must fall within a class of individuals put at foreseeable risk by the defendants action

2) the defendant does not owe a duty of care to the world at large
- Palsgraf v Long Island

Question 8

the 2 points under the reasonably foreseeable step of the Caparo test 
1) claimant must fall within a class of individuals put at foreseeable risk by the defendants action

2) the defendant does not owe a duty of care to the world at large
this was established in -Palsgraf v Long Island

discuss case

Answer 8

One of the men tripped and whilst attempting to help the fallen man, members of the railway staff caused a box of fireworks to fall and the fireworks to explode.
HELD:
Whilst it was acknowledged that the guards who caused the package of fireworks to fall were negligent in doing so, it was not considered that they were negligent to the claimant

Question 9

One of the men tripped and whilst attempting to help the fallen man, members of the railway staff caused a box of fireworks to fall and the fireworks to explode.
HELD:
Whilst it was acknowledged that the guards who caused the package of fireworks to fall were negligent in doing so, it was not considered that they were negligent to the claimant

Answer 9

the 2 points under the reasonably foreseeable step of the Caparo test 
1) claimant must fall within a class of individuals put at foreseeable risk by the defendants action

2) the defendant does not owe a duty of care to the world at large
this was established in -Palsgraf v Long Island

discuss case

Question 10

the 2nd step of the Caparo test is proximity. What are the two points under this test?

Answer 10

1) not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude a duty of care exists

2) ambiguous as to what type of relationship must exist
- alcock

Question 11

the 2nd step of the Caparo test is proximity.
1) not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude a duty of care exists

2) ambiguous as to what type of relationship must exist
-this is seen in Alcock
discuss case

Answer 11

In this case the family of those who died in the Hillsborough disaster who watched from T.V and radio were insufficiently proximate to have a duty of care owed.

Question 12

In this case the family of those who died in the Hillsborough disaster who watched from T.V and radio were insufficiently proximate to have a duty of care owed.

Answer 12

the 2nd step of the Caparo test is proximity.
1) not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude a duty of care exists

2) ambiguous as to what type of relationship must exist
-this is seen in Alcock
discuss case

Question 13

The 3rd step of the Caparo test is for it to be fair, just and reasonable. What are the 2 points?

Answer 13

1) allows for alot of judicial discretion
2) public policy: any extension of tortious liability will occur on an incremental basis (robinson)
- Bishop Rock Marine

Question 14

The Caparo test does not apply to all claims in negligence. Which case established that it will not apply where there are established categories?

Answer 14

Robinson

Question 15

The Caparo test does not apply to all claims in negligence this was established in Robinson
discuss case

Answer 15

claimant was an old frail woman who was knocked over by policy in a busy street who were attempting to arrest a suspected drug dealer.
Issue:
did police officers owe a duty of care
HELD:
did not depend on Caparo but on existing principles of law in negligence.
since there was a reasonably foreseeable risk of injury if the arrest was attempted, when pedestrians especially physically vulnerable ones may be injured
police officers owed a duty of care towards pedestrians in the immediate vicinity when the arrest was attempted

Question 16

claimant was an old frail woman who was knocked over by policy in a busy street who were attempting to arrest a suspected drug dealer.
Issue:
did police officers owe a duty of care
HELD:
did not depend on Caparo but on existing principles of law in negligence.
since there was a reasonably foreseeable risk of injury if the arrest was attempted, when pedestrians especially physically vulnerable ones may be injured
police officers owed a duty of care towards pedestrians in the immediate vicinity when the arrest was attempted

Answer 16

The Caparo test does not apply to all claims in negligence this was established in Robinson
discuss case

Question 17

What are 4 examples of established categories?1

Answer 17

1) ROAD USERS
2) manufacturers to consumers
3) employers to employees
4) doctors to patients

Question 18

What case is an example of a case within an established category of a duty of care owed by those who provide and run casualty to take reasonable care not to cause physical injury to patient?

Answer 18

Darnley

Question 19

The 3rd step of the caparo test is that it must be fair just and reasonable to impose a duty. this was established in Bishop Rock Marine
discuss case

Answer 19

Claimants cargo was being transported when the ship carrying it needed repairing. It docked for repairs but only opted for temporary repairs. the classifications society deemed it seaworthy. The ship then sank
The defendants, the classification society had no duty of care
HELD :
it was held that it would be unfair, unjust and unreasonable to place a duty of care on a classification society as against a ship owner, it being the ship owner who would ordinarily be required to recover in circumstances such as this,

Question 20

Claimants cargo was being transported when the ship carrying it needed repairing. It docked for repairs but only opted for temporary repairs. the classifications society deemed it seaworthy. The ship then sank
The defendants, the classification society had no duty of care
HELD :
it was held that it would be unfair, unjust and unreasonable to place a duty of care on a classification society as against a ship owner, it being the ship owner who would ordinarily be required to recover in circumstances such as this,

Answer 20

The 3rd step of the caparo test is that it must be fair just and reasonable to impose a duty. this was established in Bishop Rock Marine
discuss case

Question 21

What are the factors courts take into account when determine whether a duty of care exists?

Answer 21

1. the law is generally more ready and willing to prohibit acts rather than omissions
2. some harms aren’t considered sufficiently serious such as mere anxiety and upset
3. where there is an undesirable impact on the defendant/others in their position
   a) could lead people in Ds position to act overcautiously
   b) lead to excessive liability where he/she may face overwhelming crippling claims of compensation

Question 22

In what 2 ways does the court address the issue of whether D has breached the duty of care?

Answer 22

1) How the defendant ought to have behaved in the circumstances
2) the behaviour the defendants. Did they as a matter of fact fall below the standard of care required

Question 23

The question as to whether D has breached the duty of care has the basic test of reasonableness. What is the test?

Answer 23

negligence is the ommission to do something which the reasonable man would do

Question 24

The question as to whether D has breached the duty of care has the basic test of reasonableness. negligence is the ommission to do something which the reasonable man would do
what case established this?

Answer 24

Blyth v Birmingham Waterworks

Question 25

In what 2 ways has the reasonable man under breach of duty, been described?

Answer 25

a man on the Clapham Omnibus

a traveller on the London Underground

Question 26

Under breach of duty, the reasonable man test is obective. What case establishes this?

Answer 26

Nettleship v Weston

Question 27

Under breach of duty, the reasonable man test is objective. This was established by Nettleship v Weston.
Discuss case

Answer 27

The defendant was a learner driver. Defendant panicked and failed to straighten the wheel. The claimant suffered a fracture to his knee.
Issue:
The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner,
Held:
learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation.
His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault.

Question 28

The defendant was a learner driver. Defendant panicked and failed to straighten the wheel. The claimant suffered a fracture to his knee.
Issue:
The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner,
Held:
learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation.
His damages were reduced by 50% under the Law Reform (Contributory Negligence) Act 1945 to reflect the degree to which he was also at fault

Answer 28

Under breach of duty, the reasonable man test is objective. This was established by Nettleship v Weston.
Discuss case

Question 29

What are the 2 modifications to the objective test?

Answer 29

1) In regards to Children

2) Where there is a common practise (special skill)

Question 30

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

What case concerns the first

Answer 30

Mullims v Richards

Question 31

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

Mullins v Richards considered the first
discuss case

Answer 31

2 15 year olds school girls having a mock sword fight resulted in C being injured in the eye.
HELD
correct standard of care was not the reasonable adult but the prudent and reasonable 15 year old schoolgirl
Did not fall below standard

Question 32

2 15 year olds school girls having a mock sword fight resulted in C being injured in the eye.
HELD
correct standard of care was not the reasonable adult but the prudent and reasonable 15 year old schoolgirl
Did not fall below standard

Answer 32

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

Mullins v Richards considered the first
discuss case

Question 33

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

What 3 cases considered the 2nd?

Answer 33

• Bolam
• Wilsher
• Bolitho

Question 34

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

The second was considered by

• Bolam
• Wilsher
• Bolitho

What is meant by the 2nd modification?

Answer 34

Where a person professes to have a special skill or competence, the law requires that when dealing with people in the context of a calling they do so with an appropriate level of competence

Question 35

the 2 modifications to the objective test are

1) In regards to Children
2) Where there is a common practise (special skill)

The second was considered by

• Bolam
• Wilsher
• Bolitho
• Marshall

Discuss Bolam

Answer 35

A patient was given electro conclusive therapy without a relaxant drug or appropriate restraints. C sustained a fractured hip
HELD:
D not in breach of duty
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art

Question 36

A patient was given electro conclusive therapy without a relaxant drug or appropriate restraints. C sustained a fractured hip
HELD:
D not in breach of duty
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art

Answer 36

Bolam

Question 37

Which 2 cases modify the Bolam principle that
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?

Answer 37

Wilsher v Essex and

Boiltho

Question 38

Wilsher v Essex and
Boiltho
modify the Bolam principle that
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?

discuss Wilsher

Answer 38

a baby was given too much oxygen and left him blind in one eye.
HELD
C’s claim failed as HOL not persuaded on a balance of probabilities that the negligence of the doctor and not any other factor caused harm.
HOWEVER
established that the junior doctor was in breach of duty of care as the standard was not of an average doctor but a doctor who filled that post in a unit offering highly specialise service

Question 39

a baby was given too much oxygen and left him blind in one eye.
HELD
C’s claim failed as HOL not persuaded on a balance of probabilities that the negligence of the doctor and not any other factor caused harm.
HOWEVER
established that the junior doctor was in breach of duty of care as the standard was not of an average doctor but a doctor who filled that post in a unit offering highly specialise service

Answer 39

Wilsher v Essex

Question 40

What was the main principle of Wilsher v Essex?

Answer 40

Where D is occupying a particular post, their conduct will be assessed according to the standard reasonably expected of someone occupying such a post.

Question 41

Wilsher v Essex and
Boiltho
modify the Bolam principle that
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art?

discuss Biltho

Answer 41

It was accepted that if a small boy had been intubated then he probably would not have died.
HELD :
D not liable.
The House of Lords clarified the Bolam test to include a proviso
1) has the doctor acted in accordance to a practise as accepted by a proper respectable body of medical opinion
2) if yes, was the practise itself reasonable and logical

Question 42

What is the main principle of Bolitho?

Answer 42

the common practise must be logical and reasonable

Question 43

When will the standard of care be lower?

Answer 43

where the defendant is acting in the heat of the moment to, ie, an emergency or rescue

Question 44

What 4 factors do the courts take into account when setting the standard of care?

Answer 44

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Question 45

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

which case concerns the first factor?

Answer 45

Bolton v Stone

Question 46

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

bolton concerns the first
discuss case

Answer 46

C was hit outside her house by a cricket bar from an adjacent cricket pitch. Ball travelled a far distance.
HELD
claim failed.
an ordinary careful man does not take precausaiton against every foreseeable risk.

Question 47

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Which case concerns the second factor ?

Answer 47

Paris v Stephney Borough Council

Question 48

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Paris v Stephney Borough Council considered this case.
Discuss

Answer 48

C suffered serious injury at work. He was already blind in his other eye leaving him effectively blind.
HELD
D had been negligent
The seriousness of the harm which might be caused to the claimant was relevant to how a reasonable person would behave

Question 49

C suffered serious injury at work. He was already blind in his other eye leaving him effectively blind.
HELD
D had been negligent
The seriousness of the harm which might be caused to the claimant was relevant to how a reasonable person would behave

Answer 49

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Paris v Stephney Borough Council considered this case.
Discuss

Question 50

C was hit outside her house by a cricket bar from an adjacent cricket pitch. Ball travelled a far distance.
HELD
claim failed.
an ordinary careful man does not take precausaiton against every foreseeable risk.

Answer 50

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Paris v Stephney Borough Council considered this case.
Discuss

Question 51

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

What case considered the 3rd factor?

Answer 51

Latimer

Question 52

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Latimer considered the 3rd factor
discuss case

Answer 52

Heavy rainfall flooded the defendant’s factory. . D put down sawdust to remedy this covering the majority of the floor. C slipped on part of the untreated floor.
HELD:
Not liable
The defendant only had to take reasonable precautions to minimise the risk which they had done.

Question 53

Heavy rainfall flooded the defendant’s factory. . D put down sawdust to remedy this covering the majority of the floor. C slipped on part of the untreated floor.
HELD:
Not liable
The defendant only had to take reasonable precautions to minimise the risk which they had done.

Answer 53

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Latimer considered the 3rd factor
discuss case

Question 54

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Which case considered the 4th factor?

Answer 54

Watt v Herfortshire

Question 55

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Watt v Herfortshire considered the 4th factor.
Discuss case

Answer 55

a fireman was seriously injured while travelling at the back of the vehicle on the way to an accident. The vechile had not been specially fitted to carry the gear in an emergency
HELD:
t concluded that the emergency situation, combined with the high degree of social utility in ensuring a woman’s life was saved and the fact that the risk of injury was not that high, meant that the fire department could not be expected to take precautions against harming the claimant.

Question 56

a fireman was seriously injured while travelling at the back of the vehicle on the way to an accident. The vechile had not been specially fitted to carry the gear in an emergency
HELD:
t concluded that the emergency situation, combined with the high degree of social utility in ensuring a woman’s life was saved and the fact that the risk of injury was not that high, meant that the fire department could not be expected to take precautions against harming the claimant.

Answer 56

the courts take into account 4 factors when setting the standard of care

• probablity or risk of injury
• seriousness of the injury
• cost of taking precautions
• social value of the activity

Watt v Herfortshire considered the 4th factor.
Discuss case

Question 57

What 2 statutory acts support the social value of activity when setting the standard of care?

Answer 57

Compensation Act 2006 and

Social Action, Responsibility and Heroism Act 2015

Question 58

What does the Social Action, responsibility and Heroism Act 215 consider?

Answer 58

regard to

• whethe person acted for benefit of society
• whether person was acting heroically be intervening in an emergency

Question 59

There must be a balancing act between the seriousness of harm/liklihood of harm against the cost of taking precautions.
What case considers this?

Answer 59

Wagon Mound (No2)

Question 60

There must be a balancing act between the seriousness of harm/liklihood of harm against the cost of taking precautions.
Wagon Mound No2 considers this/ Discuss case

Answer 60

a large quantity of oil spilled into the harbour. Repairs caused hot metal to go into the wharf and caused destruction to the wharf.
HELD
although chance of oil lighting was low, the grave consequence if risk should materialise and easiness to eliminate risk meant the reasonable man wold have taken precautions

Question 61

a large quantity of oil spilled into the harbour. Repairs caused hot metal to go into the wharf and caused destruction to the wharf.
HELD
although chance of oil lighting was low, the grave consequence if risk should materialise and easiness to eliminate risk meant the reasonable man wold have taken precautions

Answer 61

There must be a balancing act between the seriousness of harm/liklihood of harm against the cost of taking precautions.
Wagon Mound No2 considers this/ Discuss case

Question 62

The two questions the court considers when addressing whether D has breached duty are
How the defendant ought to have behaved
the second is whether the behaviour of the defendant fell below.
Where does the burden of proof lie?

Answer 62

on the claimant to establish D is in breach

Question 63

The two questions the court considers when addressing whether D has breached duty are
How the defendant ought to have behaved
the second is whether the behaviour of the defendant fell below.
Res Ipsa Loquitur meaning ‘the thing or accident speaks for itself’ is considered
What is the 2 part test established in Scott v London?

Answer 63

1) the thing which caused the accident needs to be under management of the defendants or his servants; defendant must be in control of the thing that caused injury
2) the accident must be such as in the ordinary course of things, does not happen if those in management used proper care

Question 64

the third component of establishing negligence is whether D caused C loss (causation). What are the 2 elements?

Answer 64

factual causation; Would C have suffered the loss but for the defendants breach of duty

legal causation: Was D’s breach the sort of but for cause as to justify liability

Question 65

Whether D caused loss (causation)

What case considers the but for test under factual causation?

Answer 65

Barnett v Chelsea and Kesington Hospital

Question 66

Whether D caused loss (causation)

Barnett v Chelsea and Kesington Hospital
discuss case

Answer 66

C died of arsenic posioning after being sent home from the doctors.
HELD;
claim failed. although doctor acted negligently, C’s husband would have died even if he had been treated promptly

Question 67

C died of arsenic posioning after being sent home from the doctors.
HELD;
claim failed. although doctor acted negligently, C’s husband would have died even if he had been treated promptly

Answer 67

Whether D caused loss (causation)

Barnett v Chelsea and Kesington Hospital
discuss case

Question 68

Whether D caused loss (causation)

Under factual causation, C must show on a balance of probabilities that D had not breached his duty, C would not have suffered the loss he did.
This was considered in which case?

Answer 68

Wilsher

Question 69

Whether D caused loss (causation)

Under factual causation, C must show on a balance of probabilities that D had not breached his duty, C would not have suffered the loss he did.
This was considered in Wilsher
discuss case

Answer 69

baby was given too much oxygen and left him blind in one eye.
HELD
C’s claim failed as HOL not persuaded on a balance of probabilities that the negligence of the doctor and not any other factor caused harm.

Question 70

baby was given too much oxygen and left him blind in one eye.
HELD
C’s claim failed as HOL not persuaded on a balance of probabilities that the negligence of the doctor and not any other factor caused harm.

Answer 70

Whether D caused loss (causation)

Under factual causation, C must show on a balance of probabilities that D had not breached his duty, C would not have suffered the loss he did.
This was considered in Wilsher
discuss case

Question 71

What are the 2 exceptions to the but for rule?

Answer 71

• material contribution to injury

- material increase in risk

Question 72

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

what case considers the first?

Answer 72

Wardlaw Castings

Question 73

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

Wardlaw Castings considers the first

Answer 73

a factory employee developed a lung condition from the inhalation of innocent and guilty silica dust.
HELD:
onus of proof on claimant to prove on a balance of probabilities that the negligence or breach of duty caused or materially contributed to his injury

Question 74

a factory employee developed a lung condition from the inhalation of innocent and guilty silica dust.
HELD:
onus of proof on claimant to prove on a balance of probabilities that the negligence or breach of duty caused or materially contributed to his injury

Answer 74

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

Wardlaw Castings considers the first

Question 75

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

which 2 cases consider the second factor?

Answer 75

McGhee and Fairchild

Question 76

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

McGhee and Fairchild consider the second factor
dicuss the first case

Answer 76

D didn’t provide showers for workers and so C had to wait until home to wash dust off. It could not be established whether being able to shower at work would have prevented the disease from arising.

HELD:
even though there was other factors, HOLD held that it was sufficient for a claimant to show that the defendants breach of duty materially increased risk of injury

Question 77

D didn’t provide showers for workers and so C had to wait until home to wash dust off. It could not be established whether being able to shower at work would have prevented the disease from arising.

HELD:
even though there was other factors, HOLD held that it was sufficient for a claimant to show that the defendants breach of duty materially increased risk of injury

Answer 77

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

McGhee and Fairchild consider the second factor
dicuss the first case

Question 78

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

McGhee and Fairchild consider the second factor
dicuss the second case

Answer 78

C contracted mesothelioma from exposure to asbestos.
Issue:
claimant had worked for more than one employer and could not say which employer triggered the disease.
HELD:
the conduct of each employer exposing the claimant to a material risk should be treated as if it had made a material contribution to the disease

Question 79

C contracted mesothelioma from exposure to asbestos.
Issue:
claimant had worked for more than one employer and could not say which employer triggered the disease.
HELD:
the conduct of each employer exposing the claimant to a material risk should be treated as if it had made a material contribution to the disease

Answer 79

There are 2 exceptions to the but for rule

• material contribution to injury
• material increase in risk

McGhee and Fairchild consider the second factor
dicuss the second case

Question 80

summarise mcghee, wisher and fairchild

Answer 80

McGhee:
Knew D caused the ham just didn’t know if it was caused negligently or innocently = c succesful

Wilsher:
DOnt know if harm was caused negligently or inncocently (on balance of prob) = C’s claim failed

Fairchild:
increasing risk of C sustaining harm even if not the actual cause of C’s illness, by breaching duty= C successful

-barker limits this to the D”s share of liability

Question 81

Under Whether Ds breach caused loss what 2 cases consider loss of chance?

Answer 81

Hotson

Gregg v Scott

Question 82

Under Whether Ds breach caused loss Hotson and Greed v Scott consider loss chance. Discuss first case

Answer 82

C fell out a tree, seriously injuring his hip. He was taken to hospital to diagnose his injuries correctly
He became effectively paralysed. Medical evidence said that it was 75% likely that the condition would have developed even with prompt treatment

Question 83

C fell out a tree, seriously injuring his hip. He was taken to hospital to diagnose his injuries correctly
He became effectively paralysed. Medical evidence said that it was 75% likely that the condition would have developed even with prompt treatment

Answer 83

Under Whether Ds breach caused loss Hotson and Greed v Scott consider loss chance. Discuss first case

Question 84

What 2 cases are an example of a multiple sufficient causes?

Answer 84

Baker and

Jobling

Question 85

Baker and Jobling are an example of a multiple sufficient cause case
discuss the first

Answer 85

C suffered injury to his leg as a result of a care accident negligently caused by defendant. Later the man was shot and meant his leg had to be amputated.
HOL:
the original defendants negligence continued to operate even after the harm caused by the gun shot

Question 86

C suffered injury to his leg as a result of a care accident negligently caused by defendant. Later the man was shot and meant his leg had to be amputated.
HOL:
the original defendants negligence continued to operate even after the harm caused by the gun shot

Answer 86

Baker and Jobling are an example of a multiple sufficient cause case
discuss the first

Question 87

Baker and Jobling are an example of a multiple sufficient cause case
discuss the second

Answer 87

claimant suffered damage to back at work. However before trial he got an unrelated back disease making him unable to work.
HOLD:
account could be taken to the ordinary hardships of life; could only be compensated up until contracting the disease

Question 88

What are the 2 ways we can break the rules of causation?

Answer 88

1) remoteness- C cannot recover losses which are regarded as to remote or too far removed from the Ds breach
2) Novus Actus Intervenis; there will be no recovery where there was an intervening event or act between the D;s breach and C being injured which is viewed as breaking the chain of causation

Question 89

the basic test of remoteness is reasonable foreseeability. What case considered this?

Answer 89

Wagon Mound No1

Question 90

the basic test of remoteness is reasonable foreseeability This was considered in Wagon Mound No1
discuss case

Answer 90

due to negligence oil leaked into warf; repairs to a ship caused sparks which ignited and destroyed wharf and other ships.
HELD:
evidence showed that it is difficult to ignite furnace oil spread thinly on water, damage to the claimants property caused by fire would not have been foreseeable to a reasonable person.

Question 91

due to negligence oil leaked into warf; repairs to a ship caused sparks which ignited and destroyed wharf and other ships.
HELD:
evidence showed that it is difficult to ignite furnace oil spread thinly on water, damage to the claimants property caused by fire would not have been foreseeable to a reasonable person.

Answer 91

the basic test of remoteness is reasonable foreseeability This was considered in Wagon Mound No1
discuss case

Question 92

Under legal causation

Under remoteness it must determined whether the type of loss was foreseeable. Which case considered this?

Answer 92

Hughes v Lord Advocate

Question 93

Under legal causation

Under remoteness it must determined whether the type of loss was foreseeable.
this was considered in Hughes v Lord Advocate
discuss case

Answer 93

Ds conducted street repairs covered by lit lanterns. Child picked up lanters to investigate hole. Lantern exploded when it fell.
HELD:
Claim succeeded

Question 94

under legal causation

under remoteness the thin skull rule is considered

which case is this considered in ?

Answer 94

Smith v Leech Brain

Question 95

under legal causation

under remoteness the thin skull rule is considered

this was considered in Smith v Leech Brain
discuss

Answer 95

due to D’s negligence, C was burnt on the lip which became cancerous as a result and died.
HELD:
as long as physical injury had been foreseeable, it did not matter what the extent of this was or that C was more susceptible to a greater level of harm

Question 96

due to D’s negligence, C was burnt on the lip which became cancerous as a result and died.
HELD:
as long as physical injury had been foreseeable, it did not matter what the extent of this was or that C was more susceptible to a greater level of harm

Answer 96

under legal causation

under remoteness the thin skull rule is considered

this was considered in Smith v Leech Brain
discuss

Question 97

What case is an example of an intervening act ?

Answer 97

Knightley v Johns

Question 98

Knightley v Johns is an example of an intervening act

discuss case

Answer 98

a serious traffic accident in a one way tunnel was caused by D’s negligent driving. police officer sent 2 officers on motorcycles into the other direction of traffic. C, an officer, was hit.
HELD:
no claim could succeed against D. intervening act

Question 99

a serious traffic accident in a one way tunnel was caused by D’s negligent driving. police officer sent 2 officers on motorcycles into the other direction of traffic. C, an officer, was hit.
HELD:
no claim could succeed against D. intervening act

Answer 99

Knightley v Johns is an example of an intervening act

discuss case

Question 100

what 3 ways can an intervening act break chain of causation?

Answer 100

• acts of a thrd party
• nautrual occurrence
• gross medical negligence

Question 101

What case is an example of a grossly medical negligent case which would be an intervening act?

Answer 101

Wright v Cambridge medical group

Question 102

Wright v Cambridge medical groupis an example of a grossly medical negligent case which would be an intervening act
discuss?

Answer 102

A doctor negligently referred a 9 month old patient 4 days late to a hospital
The hospital caused permanent hip bone damage to the child
HELD”
doctor liable Damage would have been significant reduced or non-existent if referral had occurred earlier

Question 103

A doctor negligently referred a 9 month old patient 4 days late to a hospital
The hospital caused permanent hip bone damage to the child
HELD”
doctor liable Damage would have been significant reduced or non-existent if referral had occurred earlier

Answer 103

Wright v Cambridge medical groupis an example of a grossly medical negligent case which would be an intervening act
discuss?

Question 104

What are the 3 defences to negligence?

Answer 104

1) contributory negligence
2) voluntarily assuming the risk (consent)
3) illegality

Question 105

Contriburory negligence is a partial defence

What is the 3 part test?

Answer 105

1) Did C daily to exercise reasonable care for their own safety
2) Did this failure contribute to C’s damage
3) by what extent should C’s damages be reduced

Question 106

Contributory negligence is a partial defence which has an objective standard.
This was considered in Jones v Livoux Quarries and Froom
discuss first case

Answer 106

C was riding on the back of a vehicle contrary to company regulations when it crashed into the back of the tractor seriously injuring C. C sued his employer claiming the driver of the jumper truck was negligent.
HELD:
C had caused or contributed to his own injuries by his own careleness in riding on the back of the truck
-Damages reduced by 20%

Question 107

C was riding on the back of a vehicle contrary to company regulations when it crashed into the back of the tractor seriously injuring C. C sued his employer claiming the driver of the jumper truck was negligent.
HELD:
C had caused or contributed to his own injuries by his own careleness in riding on the back of the truck
-Damages reduced by 20%

Answer 107

Contributory negligence is a partial defence which has an objective standard.
This was considered in Jones v Livoux Quarries and Froom
discuss

Question 108

Contributory negligence is a partial defence which has an objective standard.
This was considered in Jones v Livoux Quarries and Froom
discuss second

Answer 108

D wasnt wearing seatbelt. Contributuoty negligence

Question 109

Voluntarily assuming the risk is a complete defence what 2 instances does this work in?

Answer 109

1) where C consents to the specific harm caused

2) where C consents to D excluding their liability for any injuries they may cause

Question 110

Voluntarily assuming the risk is a complete defence
1) where C consents to the specific harm caused
2) where C consents to D excluding their liability for any injuries they may cause
- the second was considered in Morris v Murray.
Discuss case

Answer 110

C and D had been drinking all day and decided to go for a flight in Ds plane which crashed.
HELD:
C’s clam failed since Ds estate were able to raise defence of consent

Question 111

Where has consent been rejected?

Answer 111

in relation to passagers in road traffic accidents now excluded by Road traffic 1988 Act

Question 112

the defence of illegality denies recovery to certain claimants injured whilst committing unlawful activities. It acts as a complete defence.
This was considered in Grad v Thomas w

discuss case

Answer 112

C was injured in a train crash caused by D’s negligence. He developed PTSD which caused him to stab someone to death.C sued D for the loss of earnings while in prison
HELD:
unsuccessul

Question 113

C was injured in a train crash caused by D’s negligence. He developed PTSD which caused him to stab someone to death.C sued D for the loss of earnings while in prison
HELD:
unsuccessul

Answer 113

the defence of illegality denies recovery to certain claimants injured whilst committing unlawful activities. It acts as a complete defence.
This was considered in Grad v Thomas w

discuss case